Editorial: Further Reflections on Fundamental Dishonesty - Aidan Ellis, Temple Garden Chambers
27/05/16. It is well known that pursuant to QOWCS, the circumstances in which a Defendant can enforce its costs against an unsuccessful Claimant are limited. One exception applies if the Court concludes that the claim was fundamentally dishonest. But ‘fundamental dishonesty’ can be a difficult concept to pin down. Absent higher court decisions, interesting illustrations of the application of the rule in practice are provided by two recent appeal decisions of HHJ Freedman in Zurich Insurance Plc v Bain (4 June 2015) and Nesham v Sunrich Clothing Ltd (22 April 2016).
In Bain, the Claimant claimed damages for personal injury arising out of a road traffic accident, despite having told the insurance company in a recorded telephone conversation that he was not injured. He also misled the medical expert about previous relevant medical conditions. At first instance, the Court found that the Claimant was not injured in the accident but declined to find that the claim was fundamentally dishonest. On appeal, HHJ Freedman held that the District Judge was wrong: the claim was...
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